JOHNSON, Circuit Judge:
Appellant Equal Employment Opportunity Commission ("EEOC") challenges the district court's "dismissal"
I. STATEMENT OF THE CASE
Appellee Alton Packaging Corp. ("Alton") manufactures paper cores and tubes for the paper mill industry in Jacksonville, Florida. Otis Felton, a 42-year-old high school graduate, began working for Alton in 1974, after holding positions elsewhere in the paper industry. While at Alton, Felton advanced through the ranks of seniority. He began as a general laborer, moving on to sawman trainee, number 2 roll hanger, number 1 roll hanger, tow motor operator, slitter winder helper, and spiral/tube winder operator. Alton awarded Felton a "red circle" pay increase for good work, and a supervisor once took him out to dinner for a job well done. On the other hand, his employment file as of fall 1983 contained reprimands for improper work habits, tardiness, unexcused absences, insubordination, and falsifying documents.
In late 1983, Alton acquired a new slitter/rewinder machine. Alton determined that the new machine would occasion greater productivity and thus decided to create a new production shift. Alton needed a production supervisor to head up the new shift.
Robert Raymond, the general manager of the plant, and Robert Diesen, the production manager, reviewed the files of the existing Alton personnel. They determined that none of the employees, including Felton, were qualified for the new supervisor's position. They then placed an ad in the local newspaper, seeking a "high school graduate, some college preferred" who was "mechanically inclined and good with figures." Alton received several applications as a result of this ad, and in January 1984 hired Kevin Blake, a white male. Blake had a college degree in industrial technology and had had previous employment as an electrician. Thirty days after Alton hired Blake, but before Felton filed with the EEOC, Alton destroyed all of the applications for the supervisor's position.
Felton discovered that a position had been available when he was introduced to the new production supervisor, Kevin Blake. Feeling that Alton had passed over him for the position because he was black, Felton filed a discrimination charge with the EEOC. On September 29, 1987 the EEOC filed suit in federal court alleging that Alton had refused to promote Felton in violation of § 703(a) of Title VII. On August 22, 1988, the EEOC amended the complaint, alleging that Alton had also failed to preserve the applications for the position in violation of § 709(c) of Title VII. The non-jury trial took place on March 9, 1989. At trial, one witness testified that Robert Raymond had stated that "if it was his company, he wouldn't hire any black people." Another witness, a black former Alton employee, testified that Robert Diesen had yelled at him, "____ ____ it, you people can't do a _______ thing right." Felton testified that he did not agree with all of the reprimands in his file. The EEOC objected to several handwritten reprimands on hearsay grounds.
On April 17, 1989, the district court denied the EEOC's claim. The court found that Felton was not qualified for the job in question, while Blake was. Further, the court found no evidence that Alton willfully violated Title VII's record-keeping provision. The EEOC filed Notice of Appeal with this Court on June 12, 1989. On appeal, we consider whether the district court erred in its analysis of the discrimination claim, whether the district court erred in admitting the written reprimands contained
A. The Discrimination Claim
The district court concluded that:
This Court reviews the district court's findings of fact under the clearly erroneous standard, Fed.R.Civ.P. 52(a), unless the district court made those findings pursuant to an erroneous view of controlling legal principles. Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1381 (11th Cir.1983).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court designed a test for determining whether a plaintiff has proven a prima facie case of discriminatory treatment.
The EEOC argues that the statement by Raymond that if it was his company he wouldn't hire any black people and the statement by Diesen to a black employee that "you people can't do a _______ thing right" constitute direct evidence of discrimination.
Alton argues that Miles does not apply because the speaker did not rebut the racial slur, while the speakers in this case denied making the racially derogatory statements. The lower court in this case may well have disbelieved the testimony regarding the racial slurs. If so, however, the court should have stated its disbelief explicitly. "When direct evidence of discrimination has been introduced, the lower court must, as an initial matter, specifically state whether or not it believes plaintiff's proffered direct evidence of discrimination. Absent any reference to the direct evidence, it is unclear how the court below found." Thompkins v. Morris Brown College, 752 F.2d 558, 564 (11th Cir.1985) (citation omitted). In the present case, the district court made absolutely no reference to the racial slurs, leaving this Court no means of determining whether the court disbelieved the plaintiff's testimony.
Price Waterhouse does not define direct evidence. In her concurrence, however, Justice O'Connor stated that "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself" do not "justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria." Price Waterhouse, 109 S.Ct. at 1804. Raymond's statement that if it were his company he would not hire blacks does not fall into any of these categories. Raymond was a decisionmaker, and he made the remark in reference to hiring. Diesen's statement is the kind of stray remark contemplated by Justice O'Connor, but does not affect the outcome. Raymond's statement constituted direct evidence of discrimination which Alton was required to rebut by a preponderance of the evidence. The district court erred when it failed to place this burden on Alton.
Alton argues that the court's error was harmless because Alton proved by a preponderance of the evidence that Felton would not have been promoted anyway. A reviewing court must disregard as harmless error any error which does not affect the substantial rights of the parties. Fed.R.Civ.P. 61.
Under the McDonnell Douglas test, once a plaintiff has established a prima facie case of discrimination, the defendant may rebut that case "by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The defendant does not need to prove that it was persuaded by those reasons; "[i]t is sufficient if the defendant's evidence raises a genuine issue of fact...." Id. The burden is a burden of production, not proof. Lee, 684 F.2d at
Alton argues that the district court based its decision upon two facts: (1) the fact that Felton was not as qualified as Blake; and (2) the fact that Felton's lack of qualifications constituted a separate, non-discriminatory reason. If the court based its decision solely on the first factor the decision cannot stand. "An employer may not ... prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision." Price Waterhouse v. Hopkins, 109 S.Ct. at 1791. This Court has stated even more clearly, "failure to promote a plaintiff because the person actually promoted was more qualified is a nondiscriminatory reason, but the articulation of that reason must include the fact that the decision-maker knew that the promoted individual's qualifications were superior at the time the decision was made." Hill v. Seaboard Coast Line R. Co., 767 F.2d 771, 774 (11th Cir.1985). Because Blake did not apply for the position until after Raymond and Diesen had determined that Felton was not qualified, Blake's qualifications could not have motivated their decision.
The second factor, however, has a basis in the record and supports a judgment in favor of Alton. A preponderance of the evidence indicates that Alton would not have promoted Felton even without the discriminatory reasons. At the time that Alton passed over Felton,
B. Admissibility of Written Reprimands
Determinations regarding admissibility of evidence are not disturbed on appeal absent a clear showing of abuse of discretion. Baylor v. Jefferson County Bd. of Educ., 733 F.2d 1527, 1533 (11th Cir.1984). The disputed documents were five handwritten, unsigned pages, listing 15 reprimands, contained in Felton's personnel file. The file also contained 12 other reprimands, all of which were signed, some by Felton himself. The EEOC objected to the handwritten documents on the grounds of hearsay and lack of authentication. The district court determined that the reprimands sufficiently complied with the business records hearsay exception to be admitted. The court also found that there was "enough credible evidence" to warrant admission.
C. Refusal to Issue Injunction
Title 42 U.S.C.A. § 2000e-8(c) states that employers must keep records "relevant to the determinations of whether unlawful employment practices have been or are being committed." The employers must preserve those records for such periods as the Commission shall prescribe, and must make reports on them as the Commission prescribes. The EEOC regulation states:
29 C.F.R. § 1602.14(a) (1988).
The district court determined that the applications for the management supervisor position were negligently destroyed after 30 days. The court refused to grant an injunction, however, because Alton's non-compliance with Title VII and the regulation was not willful.
The power to grant or deny an injunction normally lies within the discretion of the trial court. NAACP v. City of Evergreen, Ala., 693 F.2d 1367, 1370 (11th Cir.1982). If there is abundant evidence of past discrimination "injunctive relief is mandatory absent clear and convincing proof that there is no reasonable probability of further noncompliance with the law." Id. (emphasis in the original); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1561 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986). Alton stipulated prior to trial that its ordinary business practice was to destroy all applications for employment 30 days from the date of the selection decision. Although such destruction clearly violates the six-month preservation requirement under 29 CFR § 1602.14(a), this stipulation constitutes evidence of past violations, not of past discrimination. Absent such evidence, an injunction is not mandatory. The district court determined that Alton destroyed the records in good faith; presumably the court also satisfied itself that Alton would not commit further violations in the future. The district court did
For the foregoing reasons, we AFFIRM the district court's decision in favor of Alton Packaging.